Thomas Jefferson: Crypto-Rebel?
Encryption is the process of coding and decoding information to ensure its privacy. Encryption means that law enforcement and national security are losing surveillance capabilities, like wiretapping, upon which they have depended for decades. Government can still access well-encrypted communication, but they cannot decipher it into useful information; secure emails and phone calls elude their capture.
Indeed, the encryption of computer data may well be the most powerful tool that peaceful individuals have to protect themselves against Big Brother. Predictably, Big Brother is miffed. In a Dec. 12, 2011, Salon column entitled “Hillary Clinton and Internet Freedom,” civil rights guru Glenn Greenwald commented, “Beyond WikiLeaks, the Obama administration…is seeking ‘a new federal law forcing Internet email, instant messaging and other communication providers offering encryption to build in backdoors for law-enforcement surveillance.’”
The rationale, as expressed in “A Report to the President of the United States” on Sept. 16, 1999, remains the same today: “American history has been punctuated by periods in which the national government had to respond to sweeping social, economic and technological developments.” Speaking of cyberspace as a “new tool,” the government claims that technology raises new issues to which it must respond in new ways.
Buncombe. The core issues are exactly the same as they have always been. Government intrusion and civil liberties. Surveillance and privacy. Social control and freedom.
These issues date back to the founding of America. In 1785, a resolution authorized the secretary of the Department of Foreign Affairs to open and inspect any mail that related to the safety and interests of the United States. The ensuing “inspections” caused prominent men, like George Washington, to complain of mail tampering. According to various historians, it led James Madison, Thomas Jefferson and James Monroe to write to each other in code — that is, they encrypted their letters — in order to preserve the privacy of their political discussion.
The need for Founding Fathers to encrypt the information they sent to each other is high irony. The intrusive post office against which they rebelled had been established specifically to provide a free flow of political opinion. In the colonial 1770s, Sam Adams had urged the 13 colonies to create an independent postal system. The existing post office, established by the British, acted as a censor and barrier against the spread of rebellious sentiment. Dorothy Ganfield Fowler, in her book Unmailable: Congress and the Post Office, observed, “He [Adams] claimed the colonial post office was made use of for the purpose of stopping the ‘Channels of publick Intelligence and so in Effect of aiding the measures of Tyranny.'” Thus, “‘the necessity of substituting another office in its Stead must be obvious.’”
Alas, the more government changes, the more tyranny remains the same. Soon, the Continental Congress itself wanted to declare some types of matter “unmailable” because their content was deemed too dangerous. One of the first types of mail to become de facto unmailable was Anti-Federalist letters and periodicals. During the debates over ratifying the Constitution, the Anti-Federalists — who rejected the Constitution unless it had a Bill of Rights — simply could not circulate their material through the Federalist-controlled post office.
Yet like Adams, many of those who founded the Post Office seemed to sincerely want communication to flow freely. The first official restrictions placed on “mailability” were strictly utilitarian, not political. For example, the first law (1797) by which Congress limited what could be mailed banned newspapers with wet print because they damaged accompanying material. But politics won over good intentions. Prior to and during the Civil War, governments of both the North and South banned just about anything they deemed to be “seditious.”
Private communication in America has never recovered. Recent history is rife with purely political postal measures such as the Cunningham Amendment (1962), which restricted the circulation of communist literature that originated in a foreign country.
The American government has always realized the political importance of controlling the flow of information. In the 1770s, communication occurred primarily through postal routes maintained by horseback riders. Today, we communicate through packets of data beamed across phone lines. The type of technology used is a technicality and irrelevant to the principles involved. The key questions are who owns your words and ideas? and who has the right to read them? No wonder government wants to divert attention to the technicality of technology.
The tug of war between privacy and surveillance continues from the colonial days to modern times. For over a decade, the struggle has focused on encryption. On May 6, 1999, the Ninth Circuit Court of Appeals ruled that federal restrictions on encryption violated the First Amendment: Specifically, they constituted prior restraint and limited the freedom of the press (Daniel J. Bernstein v. U.S. Department of Justice). In that decision, Judge Betty Fletcher stated, “The availability and use of secure encryption may…reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights…but also the constitutional rights of each of us as potential recipients of encryption’s bounty.” Then, on Sept. 30, the Clinton government managed to convince the Ninth Circuit Court of Appeals that the Bernstein case should be reheard. The earlier decision was withdrawn.
Such maneuvers are nothing new. What would Thomas Jefferson have said of them? I suspect he would have said it in code.